Citation Nr: 0622971
Decision Date: 08/02/06 Archive Date: 08/15/06
DOCKET NO. 04-07 347A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to separate 10 percent ratings for each ear for
tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. Henriquez, Counsel
INTRODUCTION
The veteran had active service from October 1961 to October
1965.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a February 2003 rating decision by the Phoenix,
Arizona Regional Office (RO) of the Department of Veterans
Affairs (VA) which confirmed and continued a 10 percent
evaluation for the veteran's service-connected tinnitus. The
veteran disagreed with the single 10 percent evaluation
assigned for his "bilateral" tinnitus.
FINDING OF FACT
The veteran's service-connected tinnitus is assigned a 10
percent rating, the maximum rating authorized under
Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of separate 10
percent evaluations for "bilateral" tinnitus. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260
(2002, 2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The U.S.
Court of Appeals for Veterans Claims has held that the
statutory and regulatory provisions pertaining to VA's duty
to notify and to assist do not apply to a claim if resolution
of that claim is based on statutory interpretation, rather
than consideration of the factual evidence. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001).
In the instant case the facts are not in dispute. Resolution
of the veteran's appeal is dependent on interpretation of the
regulations pertaining to the assignment of disability
ratings for tinnitus. As will be shown below, the Board
finds that the veteran is already receiving the maximum
disability rating available for tinnitus under the applicable
rating criteria. Furthermore, regardless of whether the
veteran's tinnitus is perceived as unilateral or bilateral,
the outcome of this appeal does not change.
Therefore, because no reasonable possibility exists that
would aid in substantiating this claim, any deficiencies
regarding VCAA notice or assistance are rendered moot. See
38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362,
368 (2001) (compliance with the VCAA is not required if no
reasonable possibility exists that any notice or assistance
would aid the appellant in substantiating the claim).
Analysis
Service connection for tinnitus was established in September
2002 and the RO assigned a 10 percent disability evaluation
under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. In
January 2003, the veteran contended that a separate 10
percent evaluation should be assigned for each ear. In
February 2003, the RO denied the veteran's request because
under DC 6260 there is no provision for assignment of a
separate 10 percent evaluation for tinnitus of each ear. The
veteran appealed that decision to the Board.
Diagnostic Code 6260 was revised effective June 13, 2003, to
clarify existing VA practice that only a single 10 percent
evaluation is assigned for tinnitus, whether the sound is
perceived as being in one ear, both ears, or in the head. 38
C.F.R. § 4.87, DC 6260, Note 2 (2005).
In Smith v. Nicholson, 19 Vet. App. 63 (2005), the US Court
of Appeals for Veterans Claims (Veterans Court) reversed a
Board decision which had found that, under pre-June 2003
regulations, no more than a single 10 percent rating could be
provided for tinnitus, whether perceived as bilateral or
unilateral. The Court held that pre-1999 and pre-June 13,
2003, versions of DC 6260 required that VA assign dual 10
percent ratings for "bilateral" tinnitus where it was
perceived as affecting both ears.
VA appealed the Court's decision in Smith to the US Court of
Appeals for the Federal Circuit (Federal Circuit). The
Federal Circuit reversed the Veterans Court's decision in
Smith, and affirmed VA's longstanding interpretation of DC
6260 as authorizing only a single 10 percent rating for
tinnitus, whether perceived as unilateral or bilateral.
Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing
U.S. Supreme Court precedent, the Federal Circuit explained
that an agency's interpretation of its own regulations is
entitled to substantial deference by the courts as long as
that interpretation is not plainly erroneous or inconsistent
with the regulations. Id. Finding that there was a lack of
evidence in the record suggesting that VA's interpretation of
DC 6260 is plainly erroneous or inconsistent with the
regulations, the Federal Circuit concluded that the Veterans
Court had erred in not deferring to VA's interpretation.
In view of the foregoing, the Board concludes that the
version of DC 6260 in effect prior to June 2003 precludes an
evaluation in excess of a single 10 percent for tinnitus.
Therefore, the veteran's claim for separate 10 percent
ratings for each ear for his service-connected tinnitus must
be denied under both the new and old versions of the
regulation. As the disposition of this claim is based on the
law, and not the facts of the case, the claim must be denied
based on a lack of entitlement under the law. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994).
ORDER
Entitlement to separate 10 percent evaluations for service-
connected tinnitus is denied.
____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs